The Senate Judiciary Committee seems to be gearing up for a fight with the Administration over documents related to the firing of nine U.S. Attorneys in 2006. With Attorney General Alberto Gonzales having been haled up to Capitol Hill twice, with little to show for the hearings except a batch of unanswered questions, the Committee has demanded the production of documents and access to White House aides. Pursuant to a subpoena to AG Gonzales issued on May 2, the Department of Justice provided (here) a grand total of two e-mails in which Rove's name appears as a recipient, which were sent by an aide in the White House Office of Political Affairs. The e-mails concern the firing of New Mexico U.S. Attorney David Iglesias and issues related to contacts with him by two members of Congress; both e-mails were sent in February 2007 and do not relate to the decision to fire any of the U.S. Attorneys. The Committee subpoena also sought e-mails from Special Counsel Patrick Fitzgerald's investigation of the Valerie Plame leak because he received a large volume of Rove's e-mails. There is an interesting statement in the cover letter accompanying the e-mails about where they might be found:

In response to your subpoena, the Office of Special Counsel Patrick Fitzgerald also conducted a search using the same search terms referenced above and we have been advised that this effort did not identify any responsive documents. Mr. Fitzgerald noted that his Office did not obtain all of Mr. Rove's e-mails, but rather obtained access to his electronic media for the purpose of searching for documents responsive to search terms relevant to his investigation. Only records responsive to Mr. Fitzgerald's investigative search terms were retained by his Office and none of those records are responsive to the Committee's subpoena. The electronic media was returned to Mr. Rove's counsel, Mr. Robert Luskin, in a sealed condition. [Italics added]

The Committee may seek to obtain the documents from Luskin if he still has the "electronic media" in his possession rather than go directly to the White House for Rove's e-mails. Luskin could not assert the attorney-client privilege for the items, and it may be that when Fitzgerald provided them to a third party, that negates a claim of Executive privilege by the Administration.

Indeed, the issue of Executive privilege may well be raised by a letter (here) from Judiciary Committee chairman Senator Patrick Leahy to Fred Fielding, Counsel to the President, threatening to issue subpoenas to the White House for documents related to the U.S. Attorney firings. The letter asserts that the Administration's denial of any wrongdoing is not consistent with its refusal to turn over documents or make any Presidential aides available for on-the-record testimony. Leahy writes:

Even though the White House has not provided a single document or witness, the President and others speaking for the Administration continue to state that “nothing improper” has occurred and that “there is no credible evidence of wrongdoing.” I continue to await an answer to my April 5, 2007, letter to you asking for the “reviews by White House staff” that led the President to conclude as of March 20, 2007, that there was no wrongdoing, including any information that has led the President to discount the mounting evidence of impropriety revealed as the investigation continues.

The White House cannot have it both ways—it cannot withhold the documents and witnesses and thereby stonewall the investigation and, at the same time, claim that it knows of nothing improper. The involvement of Mr. Rove was initially denied but must now be conceded, as it was by the Attorney General and by the Attorney General’s former chief of staff during their Senate Judiciary Committee testimony.

A subpoena to the White House will surely provoke an assertion of Executive privilege and a long fight with Congress. (ph)